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If you have been arrested for DWI in New Hampshire, the officer probably had you do some field sobriety tests. (Hopefully, you refused to do the tests as they are voluntary and set-up for you to fail). If the officer had you do tests, he should have administered them and graded them a certain way. The officer will use his training based upon NHTSA guidelines. Attorney Hynes is certified not only to administer these tests, but is one of the few lawyers in the state who has completed the Instructor class on field sobriety tests which is used to train officers on how to administer them.

There are three standardized field sobriety tests that are usually given. An eye test, a walking test, and a test to stand on one leg. These tests have many limitations. People often have difficulty doing the tests even if they are not impaired. Additionally, many officers do not administer the tests perfectly.

These tests can be difficult to administer and interpret. Good DUI defense means knowing everything about these tests. Attorney Hynes has an entire chapter of his book for other lawyers devoted to these tests. Here is some specifics regarding those tests:

Standardized Field Sobriety Tests

Horizontal Gaze Nystagmus (HGN) (Eye test)

The first test is the horizontal gaze nystagmus test (Pen/ Eye test). A nystagmus is an involuntary jerking of the eye. The officer, when moving a stimulus (pen, finger) across the person's face, is looking to see if the eye "jerks" instead of moving smoothly.

Unfortunately, it is impossible for you to know if you passed this test. Your job is to keep your feet together, arms at the side, and follow the pen with your eyes only. A nystagmus will not affect your vision or your driving, and it is impossible for you to know if the police officer saw a nystagmus or not. Many officers administer this test incorrectly, and with the proper cross examination I am often able to get it kept out of evidence.

One of the main problems with this test is THINGS OTHER THAN ALCOHOL CAUSE A NYSTAGMUS. For example: “It is undisputed that there are many factors that can cause nystagmus: problems in an individual's inner ear labyrinth; physiological problems such as influenza, streptococcus infection, vertigo, epilepsy, or measles; conditions such as eye muscle fatigue, sunstroke, or glaucoma; changes in atmospheric pressure; and consumption of substances such as caffeine, nicotine, or aspirin. See 1 R. Erwin, Defense of Drunk Driving Cases § 10.09[5], at 10-43 (3d ed. 1999) (Defense of Drunk Driving); M. Rouleau, Unreliability of the Horizontal Gaze Nystagmus Test, 4 Am.Jur.Proof of Facts 3d 439 § 9, at 455 (1989) (4 Am.Jur. POF 3d); National Highway Traffic Safety Administration (NHTSA), United States Department of Transportation (DOT), No. DOT HS-0806512, Improved Sobriety Testing (1984) (1984 NHTSA Instruction Manual), reprinted in 1 Defense of Drunk Driving § 10.99[2], app. at 10-93.[6]”

One Court has specifically listed 38 different possible causes of nystagmus other than alcohol:

Walk and Turn

The second test that is typically administered is the Walk and Turn. Besides being a balancing test, this is really a listening test. If you do the slightest thing contrary to the officer's instructions, you are likely going to fail this test. It takes on 2 mistakes out of close to 100 possible things for the officer to determine you failed this test. While there are 8 specific things the officer is looking for, because many of the things occur on all of the 18 steps, the possibility to make even a small mistake adds up quickly.

Many people have balance issues or health conditions that make this test extremely difficult to do. Hopefully, you told the officer about any physical limitations you had. It is also a good idea to hire an expert witness if you are going to have a trial to show the limitations of these tests.

One Leg Stand

The third test the officer will usually have you do is to stand on one leg for 30 seconds. If you put your foot down at all during this test, you probably failed it according to the officer. As with the walking test, many people are simply unable to do this test, especially on the side of the road at night-time. Hiring a good DWI lawyer who can point out the limitations of the field sobriety tests, will lead you to presenting your best defense.

It is important to note these tests are "standardized" tests. The officer cannot and should not deviate from the training or scoring. The manual emphasizes this in capital letters and in bold:

"IT IS NECESSARY TO EMPHASIZE THIS VALIDATION APPLIES ONLY WHEN:

THE TESTS ARE ADMINISTERED IN THE PRESCRIBED MANNER

THE STANDARDIZED CLUES ARE USED TO ASSESS THE SUSPECT'S PERFORMANCE

THE STANDARDIZED CRITERIA ARE EMPLOYED TO INTEREPT THAT PERFORMANCE

IF ANY OF THE STANDARDIZED FIELD SOBRIETY TEST ELEMENTS IS CHANGED, THE VALIDITY IS COMPROMISED"

Disclaimer: Past results do not guarantee a future outcome. Results include cases in both Massachusetts and New Hampshire. Attorney Dan Hynes is admitted to practice law only in Massachusetts and New Hampshire. This website may be considered advertising. Contacting us does not create an attorney/client relationship and the information on this site is not legal advice and may be inaccurate or not applicable to your case. Each case is different.